Employment Law – Employee Compensated After Award Obligations Ignored

The Fair Work Commission has compensated an employee who was unfairly dismissed because her employer failed to comply with their consultation obligations under the relevant award.

Employment Law – Facts

In essence:

Carer’s that Care (CTC) terminated Ms Morris’ employment because it could not afford to pay her full-time wage after losing a significant number of clients

Ms Morris argued that she hadn’t received any warnings but was only told that CTC was shutting down and staff would be made redundant

She also argued that she was not provided with the opportunity to respond, because the managing director refused to have any discussions with Morris

Morris lodged an application for unfair dismissal

Employment Law – The Relevant Law

Section 389 of the Fair Work Act (‘The Act’) states that a genuine redundancy occurs when an employee’s position is no longer required and the employer has complied with any obligations under the modern award or enterprise agreement

The Fair Work Commission will then examine whether the dismissal was harsh, unreasonable or unjust under s387 of the Act

Employment Law – Fair Work Commission decision

The Fair Work Commission:

found that the employee’s dismissal was not a genuine redundancy because the consultation obligations under the Clerks-Private Sector Award were not satisfied

accepted that Ms Morris was dismissed because her role could no longer be performed due to operational changes

found that the company had failed to consult with Ms Morris as required under the award was significant. Additionally, the company only verbally notified Morris of the dismissal

consequently ruled that her dismissal was harsh, unjust or unreasonable.

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